Mainers voted Tuesday to approve a new statewide “red flag” law, which will now function alongside the uniquely tailored yellow flag policy adopted several years ago. As of late Tuesday night, with a little less than two-thirds of the votes counted, support for the red flag law proposed in Question 2 outweighed opposition by a margin of three to two.
Otherwise known as an “Extreme Risk Protective Order” (ERPO), a red flag law empowers law enforcement to disarm an individual who family members, friends or others say poses a risk to themselves or the community at large.
As a result of Tuesday’s election, Maine will now be joining a coalition of 21 other states that currently have Red Flag, or ERPO, laws in effect.
In 2020, the Sportsman’s Alliance of Maine (SAM) worked together with Gov. Janet Mills (D) to pass a unique Yellow Flag law, which is also intended to remove firearms from individuals who might use it to harm themselves or others.
This specially crafted measure, which also takes risk into account—seen by some as a compromise move—acknowledges the danger posed by mentally ill persons having access to a gun, requiring an evaluation of mental illness before authorities can act.
The red flag law proposed in Question 2 allows relatives to directly petition courts to take away a person’s guns if they feel their family member poses a threat.
Barring certain circumstances, a hearing is to be held within 14 days of the petition being filed, during which petitioners bear the burden of proving the individual in question poses a threat. During these proceedings, the individual has a right to legal representation.
An ERPO may then be issued if “respondent poses a significant danger of causing physical injury to the respondent or to another person by purchasing, possessing or receiving a dangerous weapon or by having or attempting to have custody or control of a dangerous weapon.”
An ERPO issued through this process is valid for a period of up to one year, during which time, the individual is barred from owning, buying, or otherwise possessing a weapon.
Respondents may file motions to terminate ERPOs under the proposed law, and petitioners may file motions to renew.
Once an ERPO expires, any weapons surrendered must be returned to the individual within three days.
Under this legislation, the State Court Administrator would be required to submit an annual report to the Legislature detailing the number of petitions filed and the amount of ERPOs granted, among other things.
A source familiar with SAM’s strategy for combatting the gun control measure said that they are prepared to immediately challenge the constitutionality of the measure in court.
[RELATED: Mainers Will Have Chance to Vote on Referendum Questions One and Two on the Ballot This November]
Leading up to Tuesday’s election, Gov. Mills publicly expressed clear opposition to the measure, publishing an op-ed in the Portland Press Herald urging voters to reject the proposal at the ballot box.
“Our law has been preventing suicide, getting people help and saving lives every day. But this successful law is at risk from a referendum question on the Nov. 4 ballot. Question 2, the so-called red flag measure, has been billed as strengthening gun safety measures. In reality, it will undermine the safety of the public,” wrote Mills.
In her opinion piece, Mills celebrated the success of the yellow flag laws, which have been used over 1,100 times and warned against undermining them by implementing red flag laws instead.
“Our law is not some cookie cutter measure copied and pasted from another state. It was written by and for Maine people, carefully crafted to include important due process safeguards that protect both public safety and the rights of the individual,” said Mills.
She pointed out that the yellow flag law won unanimous Senate support and nearly unanimous support in the House.
The Governor revealed that, across the state, the yellow-flag laws are used more than once a day, far more often than red-flag laws are used in other states.
Mills also raised concerns about the constitutionality of a red-flag law, which provides significantly less due process before removing someone’s Second Amendment rights, making it more likely to be challenged and struck down.
“As a constitutional matter, Question 2 is suspect. As a practical matter, it is confusing, incompatible with our current law and puts both police and civilians in greater danger,” said Mills.
“Our law is saving lives every day. Let’s not risk that,” she added.
[RELATED: Mills Doubles Down on Opposition to Red-Flag Referendum in Op-Ed for Portland Paper]
Last year, an appeals court upheld New York’s version of a red flag law, rejecting arguments that the measure represented a violation of the Second Amendment.
“This regulation is consistent with the nation’s historical tradition of firearm regulation in keeping dangerous individuals from carrying guns and, therefore, is presumptively lawful,” the 2024 opinion read.
A nearly-unanimous Supreme Court ruling from the same year deemed laws banning gun ownership for people under domestic violence restraining orders to be constitutional.
“The reach of the Second Amendment is not limited only to those arms that were in existence at the Founding,” said Chief Justice John Roberts in the majority opinion. “By that same logic, the Second Amendment permits more than just regulations identical to those existing in 1791.”
Justice Clarence Thomas was the only member of the Court to dissent in that case, explaining that he felt the law ought to be deemed unconstitutional because no one had “identifie[d] a single historical regulation with a comparable burden and justification as the [challenged] law.”
The Supreme Court had previously ruled in 2008 that the Second Amendment protects individuals’ right to own a gun — making a blanket ban on firearm ownership unconstitutional — but has since issued further guidance for determining the constitutionality of particular restrictions.
In 2022, the Supreme Court established a new test for deciding whether or not gun laws violate the Constitution, requiring regulations to be found “consistent with the Nation’s historical tradition of firearm regulation.”
“Of course, the regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868,” the majority opinion in State Rifle Association v. Bruen said. “But the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it.”
[RELATED: Mainers Narrowly Split Over November Referendum Questions — Pine Tree State Poll]
Polling leading up to Tuesday’s election indicated that Question 2 was going to be a close call, as levels of support and opposition were nearly equal.
That said, there were still a whopping 22 percent of voters at the time who were undecided.
While Republicans were largely against the measure, with just 10 percent indicating that they intended to vote for the bill, Democrats and Independents were both more divided in their positions.
At the time, 63 percent of Democrats expressed an intent to vote in support of the referendum, alongside 44 percent of Independents.
As of 11pm Tuesday night, with 57 percent of the votes counted, tallies show that Question 2 was on track to be adopted with support from about 60 percent of Mainers.
